Karnataka High Court

Sri Kailash S.Raj vs State Of Karnataka on 26 June, 2023

Bench: M.Nagaprasanna

                             1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 26TH DAY OF JUNE, 2023    R
                             BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.3371 OF 2023

                               C/W

             CRIMINAL PETITION No.3314 OF 2023

IN CRIMINAL PETITION No.3371 OF 2023

BETWEEN:

1 . SRI KAILASH S. RAJ
    S/O K.SAMPATH RAJ,
    AGED ABOUT 42 YEARS,
    R/O NO.12, "ABHINANDAN",
    UTTARADHI MUTT ROAD,
    SHANKARAPURAM,
    BENGALURU - 560 004.

2 . SRI VINAY S. RAJ,
    S/O K.SAMPATH RAJ,
    AGED ABOUT 40 YEARS,
    R/O NO.12, "ABHINANDAN",
    UTTARADHI MUTT ROAD,
    SHANKARAPURAM,
    BENGALURU - 560 004.

3 . SRI CHETAN MARLECHA,
    S/O K.SAMPATH RAJ,
    AGED ABOUT 46 YEARS,
    R/O NO. 5/2, "ASHRAY",
                             2



     NORTH SQUARE ROAD,
     NEAR POST OFFICE,
     BASAVANAGUDI,
     BENGALURU - 560 004.
                                               ... PETITIONERS
(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE A/W
    SRI BHARATH KUMAR V., ADVOCATE)

AND:

1.    STATE OF KARNATAKA
      THROUGH STATION HOUSE OFFICER,
      KARNATAKA LOKAYUKTA
      BANGALORE CITY DIVISION,
      M.S.BUILDING,
      BENGALURU - 560001
      REPRESENTED THROUGH
      THE LEARNED SPECIAL PUBLIC PROSECUTOR,
      HON'BLE HIGH COURT OF KARNATAKA,
      BENGALURU - 560 001.

2.    INSPECTOR OF POLICE,
      KARNATAKA LOKAYUKTA
      BANGALORE CITY DIVISION,
      M.S.BUILDING,
      BENGALURU - 560 001.
                                            ... RESPONDENTS


(BY SRI B.B.PATIL, SPL.PP FOR THE RESPONDENTS)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.15/2023 ALONG
WITH INFORMATION DATED 04.03.2023 REGISTERED WITH THE
RESPONDENT NO.1 KARNATAKA LOKAYUKTA, BENGALURU CITY
DIVISION POLICE STATION, BENGALURU AND CURRENTLY
PENDING ON THE FILE OF THE HONBLE XXIII ADDITIONAL CITY
                             3



CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-24) AS CRIME
NO.15/2023 WHEREIN THE PETITIONER HEREIN ARE SHOWN AS
ACCUSED THROUGH THEIR DESIGNATION FOR THE ALLEGED
OFFENCE U/S.7(b),7-A, 8, 9 AN 10 OF THE PREVENT OF
CORRUPTION ACT (ANNEXURE A AND A1).


IN CRIMINAL PETITION No.3314 OF 2023

BETWEEN:

1 . SRI ALBERT NICOLAS,
    S/O R.SUSAINATHAN,
    AGED ABOUT 51 YEARS
    EMPLOYED WITH
    M/S KARNATAKA AROMAS,
    R/O NO.226, VENKATESH BUILDING,
    MUNIGOWDA GARDEN,
    NEELASANDRA,
    BENGALURU - 560 047.

2 . SRI GANGADHAR
    S/O HOMBALAIAH
    AGED ABOUT 45 YEARS
    EMPLOYED WITH
    M/S KARNATAKA AROMAS,
    R/O 128/3, 6TH MAIN,
    HALEGUDDADAHALLI,
    DEVRAJ URS NAGAR,
    BENGALURU - 560 026.
                                            ... PETITIONERS
(BY SRI BHARATH KUMAR V., ADVOCATE (VIDEO
  CONFERENCING / PHYSICAL HEARING))

AND:

1.   STATE OF KARNATAKA
     THROUGH STATION HOUSE OFFICER,
                            4




     KARNATAKA LOKAYUKTA
     BANGALORE CITY DIVISION,
     M.S.BUILDING,
     BENGALURU - 560 001
     REPRESENTED THROUGH
     THE LEARNED SPECIAL PUBLIC PROSECUTOR
     HON'BLE HIGH COURT OF KARNATAKA
     BENGALURU - 560 001.

2.   INSPECTOR OF POLICE
     KARNATAKA LOKAYUKTA
     BANGALORE CITY DIVISION,
     M.S. BUILDLING,
     BENGALURU - 560 001.
                                             ... RESPONDENTS

(BY SRI B.B.PATIL, SPL.PP FOR RESPONDENTS)


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.15/2023 ALONG
WITH INFORMATION DATED 04.03.2023 REGISTERED WITH THE
RESPONDENT NO.1 KARNATAKA LOKAYUKTA, BENGALURU CITY
DIVISION POLICE STATION, BENGALURU AND CURRENTLY
PENDING ON THE FILE OF THE HON'BLE XXIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-24) AS CRIME
NO.15/2023 WHEREIN THE PETITIONER HEREIN ARE SHOWN AS
ACCUSED NO.2 AND 3 FOR THE ALLEGED OFFENCE U/S.7(b),
7-A, 8, 9 AN 10 OF THE PREVENT OF CORRUPTION ACT (ANNEXURE
A AND A1).                                               .


     THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.06.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
                                 5



                               ORDER

Both these petitions call in question registration of crime in

Crime No.15 of 2023 for offences punishable under Sections 7(b),

7A, 8, 9 & 10 of the Prevention of Corruption Act, 1988 (hereinafter

referred to as 'the Act' for short) and pending before the XXIII

Additional City Civil and Sessions Judge and Special Court under

Prevention of Corruption Act, Bengaluru. Criminal Petition No.3314

of 2023 is preferred by accused Nos. 2 and 3 - one Albert Nicolas

and Gangadhar. Criminal Petition No.3371 of 2023 is preferred by

one Kailash S.Raj, Vinay S.Raj and Chetan Marlecha who are

depicted to be owners of M/s Karnataka Aromas Company and are

arrayed as accused No.5 in the aforesaid crime.

2. Shorn of unnecessary details, the facts in brief as borne

out from the pleadings are as follows:

Before embarking upon consideration of the case of the

petitioners, a little walk through the facts of the case is necessary.

One Maadal Virupaksha, at the relevant point in time, was the

Chairman of Karnataka Soaps and Detergents Limited, a

Government owned Company. One Prashanth Kumar M.V. is the

son of Maadal Virupaksha who is arrayed as accused No.1. The

petitioners in these petitions are the other accused. The Karnataka

Soaps and Detergents Limited notified a tender for Chemical oil

supply for the year 2023. The tender was notified in January 2023.

There were two participants in the said tender - one M/s Chemixil

Corporation and the other M/s M.S. Delicia Chemicals. Participation

in the said tender by the two leads to certain negotiations with

accused No.1, son of the Chairman of the Karnataka Soaps and

Detergents Private limited. Alleging demand of money,

complainant's representative of M/s Chemixil Corporation, one of

the tenderer, registers a complaint before the Lokayukta on 02-03-

2023. The allegation in the crime is of demand of `81/- lakhs by

accused No.1 for a smooth sailing of payment of bills pursuant to

tender for supply of oil. Therefore, the tender is for supply of

material and the assurance is that the bills would be cleared after

the supply of material.

3. The gist of the complaint is that accused No.1 calls the

complainant at his personal office in Crescent Road and negotiates

with the price that is to be paid as alleged bribe for clearance of the

bills in future. It is alleged that initially a sum of `60/- lakhs had

been demanded from the hands of the first informant to ensure that

tenders are accepted and the amount released in their favour

without any interference. It is further alleged that accused No.1

agreed to receive a sum of `33/- lakhs and `48/- lakhs on two

different dates which was on a consensus. It is also averred in the

complaint that against the said assurance a particular quote was to

be given by the first informant at `815/- per kg. for supply of 5100

kgs. of Guiacwood oil and the other participant in the tender would

quote at `4,349/- per kg. for the supply of 29520 kgs. of Musk to

the Karnataka Soaps and Detergent.

4. The further allegation is that the competitor had quoted

the price according to what accused No.1 had informed them, to

submit their bids and the bids were submitted and scrutinized in

terms of what was assured. Accused No.1 called the first informant

to pay `81/- lakhs and the informant meets accused No.1 on

08-02-2023 at 5.10 p.m. and agrees to make good the amount of

`81/- lakhs. The complaint narrates that at that point in time itself,

the conversation is recorded in his smart watch and the

conversation was that accused No.1 wanted to receive the amount

on behalf of the Chairman Maadal Virupaksha. The complaint

further alleges that accused No.1 repeatedly called the informant to

meet him in his personal office as he had not yet made good the

amount.

5. It is then the first informant approaches the Lokayukta on

02-03-2023 by registering the impugned complaint. Based upon the

impugned complaint, a crime comes to be registered in Crime

No.13 of 2023 initially for offences punishable under Sections 7(a),

7(b), 7A, 8, 9 and 10 of the Act and a pre-trap mahazar was drawn.

The first informant was asked to bring the amount of `40/- lakhs in

cash to the personal office of accused No.1 and hand it over to

accused No.1 as was demanded by him. At that point in time, the

Lokayukta Police conduct a raid at the personal office of accused

No.1, arrayed Maadal Virupaksha as accused No.1 and his son as

accused No.2 in Crime No.13 of 2023.

6. During the conduct of raid/search, it appears that accused

one Albert Nicolas and Gangadhar who are petitioners in Criminal

Petition No.3314 of 2023 were sitting with two bags in the lobby of

personal office of Sri M.V. Prashanth Kumar, son of Maadal

Virupaksha. When the bags were searched `45/- lakhs cash in each

bag was found. When explanation was sought by the Police as to

the ownership of the amount, satisfactory explanation was not

given. It is, therefore, those two were taken into custody and then

arrayed them as accused 5 and 6 in Crime No.13 of 2023.

7. Subsequent to the aforesaid incidents, a separate FIR

comes to be registered against five people in Crime No.15 of 2023.

Accused No.1 in the said crime is M.V. Prashanth Kumar son of

Maadal Virupaksha, Albert Nicolas, accused No.2, C.H.Gangadhar,

accused No.3 and one Deepak Jadhav accused No.4 and the

petitioners in Criminal Petition No.3371 of 2023 partners of the

Company viz., Karnataka Aromas Company. They were not arrayed

as accused by name but by their designation. The allegation in

Crime No.15 of 2023 is for offences punishable under Sections 7(b),

7A, 8, 9 and 10 of the Act. Section 7(b) and 7A are laid in Crime

No.15 of 2023 on the score that accused No.1 Mr. M.V. Prashanth

Kumar is an employee of the Public Works Department of the

Government and is presently working as Finance Adviser and Chief

Controller of Accounts in BWSSB. Therefore, he is a public servant.

The other allegations under Sections 8, 9 and 10 are against the

Company and the officials of the Company. Registration of crime

against the Company and officials of the Company is what drives

the petitioners to this Court in these petitions.

8. Heard Sri Sandesh J.Chouta, learned senior counsel

appearing for the petitioners in Crl.P.No.3371 of 2023; Sri V.

Bharath Kumar, learned counsel appearing for the petitioners in

Cr.P.No.3314 of 2023 and Sri B.B. Patil, Special Public Prosecutor

for the respondents in both the cases.

9. The learned senior counsel representing the petitioners in

Crl.P.No.3371 of 2023 would vehemently contend that the

petitioners are not even named in the FIR. It is by their designation

being partners of a Company, they are arrayed as accused.

Therefore, they are not aware either they are accused No.5 or

accused No.6. The only allegation that the petitioners are dragged

in is that accused Nos. 2, 3 and 4 are employees of accused No.5,

the Company. He would contend that at best the offences that can

be laid against the petitioners, as they are not public servants, are

the ones punishable under Sections 8, 9 and 10 of the Act. It is,

therefore, those provisions of law are added in the FIR. He would

further contend that the Amendment Act of 2018 to the Act

introduced proviso which clearly depicts that if the bribe giver is

compelled to give bribe in the circumstances beyond his control, he

should report it to the agency within one week. His submission is

that even before one week could lapse, the crime is registered and

the petitioners are made accused. Therefore, the petitioners who

are owners of the Company cannot be seen to be dragged into the

web of crime for the money belonging to accused No.4. He would

submit that any further proceedings continued against the

petitioners would become an abuse of the process of law and

therefore, it is to be quashed.

10. The learned counsel appearing for the petitioners in

Crl.P.No.3314 of 2023 while adopting the submissions of the

learned senior counsel would submit that accused 2 and 3 are the

persons working in the cadre of Assistant Managers in the

Company. They were sitting in the personal office of accused No.1

on behalf of accused No.4, who is an official in a higher rank in the

Company, who wanted to establish his own distributorship and the

money belonged to accused No.4. He has given his first statement

before the concerned that the money belongs to him. He seeks

quashment of proceedings.

11. On the other hand, the learned Special Public Prosecutor

Sri B.B.Patil, appearing for the respondents would vehemently

refute the submissions to contend that the petitioners have rushed

to the Court immediately after registration of the FIR. The

investigation is still on and has produced papers of investigation

that has taken place till now, to demonstrate clear demand and

acceptance on the part of accused No.1. Insofar as petitioners in

Crl.P.No.3371 of 2023 are concerned they are alleged for offences

punishable under Sections 8, 9 and 10. He would submit that

whatsapp chats that are a part of investigation clearly point at

offences against the petitioners as well. He would, therefore,

contend that further proceedings should be permitted to be

continued and this Court should not interfere in the impugned

proceedings at this stage.

12. The learned senior counsel joining issue, would seek to

emphasize on the proviso, that the proviso to the section makes it a

crime only after one week and not earlier to that and the petitioners

could have explained the compelling circumstances and before that

the crime ought not to have been registered against the petitioners.

He would seek quashment of the crime so registered against the

petitioners.

13. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record, including the investigation papers produced at

the time of arguments.

14. The afore-narrated facts or the contents of the complaint

so registered by the first informant, are all a matter of record and

therefore, they would not require any reiteration. Accused No.1 is a

public servant, is not before the Court. Therefore, consideration of

offences under Sections 7(b) and 7A are not the scope of the

present petition. The submission of the learned senior counsel is

that the offences against the petitioners at best can be qua Sections

8, 9 and 10 of the Act. Therefore, the said provisions qua the

contents of the complaint and the FIR require consideration. The

Prevention of Corruption Act comes to be amended and the

amendment was notified on 26-07-2018. Certain provisions were

added and post the amendment the Prevention of Corruption Act

insofar as it pertains to Sections 7 to 10 runs as follows:

"7. Offence relating to public servant being bribed.--Any public servant who,--

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person,

shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

Illustration.--A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.

Explanation 2.--For the purpose of this section,--

(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;

(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.]

7-A. Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence.--Whoever accepts or obtains or attempts to obtain from another person for himself or for any other person any undue advantage as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another public servant, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

8. Offence relating to bribing of a public servant.-- (1) Any person who gives or promises to give an undue advantage to another person or persons, with intention--

(i) to induce a public servant to perform improperly a public duty; or

(ii) to reward such public servant for the improper performance of public duty;

shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both:

Provided that the provisions of this section shall not apply where a person is compelled to give such undue advantage:

Provided further that the person so compelled shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage:

Provided also that when the offence under this section has been committed by commercial organisation, such commercial organisation shall be punishable with fine.

Illustration.--A person, 'P' gives a public servant, 'S' an amount of ten thousand rupees to ensure that he is granted a license, over all the other bidders. 'P' is guilty of an offence under this sub-section.

Explanation.--It shall be immaterial whether the person to whom an undue advantage is given or promised to be given is the same person as the person who is to perform, or has performed, the public duty concerned, and, it shall also be immaterial whether such undue advantage is given or promised to be given by the person directly or through a third party.

(2) Nothing in sub-section (1) shall apply to a person, if that person, after informing a law enforcement authority or investigating agency, gives or promises to give any undue advantage to another person in order to assist such law enforcement authority or investigating

agency in its investigation of the offence alleged against the later.

9. Offence relating to bribing a public servant by a commercial organisation.--(1) Where an offence under this Act has been committed by a commercial organisation, such organisation shall be punishable with fine, if any person associated with such commercial organisation gives or promises to give any undue advantage to a public servant intending--

(a) to obtain or retain business for such commercial organisation; or

(b) to obtain or retain an advantage in the conduct of business for such commercial organisation:

Provided that it shall be a defence for the commercial organisation to prove that it had in place adequate procedures in compliance of such guidelines as may be prescribed to prevent persons associated with it from undertaking such conduct.

(2) For the purposes of this section, a person is said to give or promise to give any undue advantage to a public servant, if he is alleged to have committed the offence under Section 8, whether or not such person has been prosecuted for such offence.

(3) For the purposes of Section 8 and this section,--

(a) "commercial organisation" means--

(i) a body which is incorporated in India and which carries on a business, whether in India or outside India;

(ii) any other body which is incorporated outside India and which carries on a business, or part of a business, in any part of India;

(iii) a partnership firm or any association of persons formed in India and which carries on

a business whether in India or outside India; or

(iv) any other partnership or association of persons which is formed outside India and which carries on a business, or part of a business, in any part of India;

(b) "business" includes a trade or profession or providing service;

(c) a person is said to be associated with the commercial organisation, if such person performs services for or on behalf of the commercial organisation irrespective of any promise to give or giving of any undue advantage which constitutes an offence under sub-section (1).

Explanation 1.--The capacity in which the person performs services for or on behalf of the commercial organisation shall not matter irrespective of whether such person is employee or agent or subsidiary of such commercial organisation.

Explanation 2.--Whether or not the person is a person who performs services for or on behalf of the commercial organisation is to be determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship between such person and the commercial organisation.

Explanation 3.--If the person is an employee of the commercial organisation, it shall be presumed unless the contrary is proved that such person is a person who has performed services for or on behalf of the commercial organisation.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under Sections 7-A, 8 and this section shall be cognizable.

(5) The Central Government shall, in consultation with the concerned stakeholders including departments and with a view to preventing persons associated with commercial organisations from bribing any person, being a public servant, prescribe such guidelines as may be considered necessary which can be put in place for compliance by such organisations.

10. Person in charge of commercial organisation to be guilty of offence.--Where an offence under Section 9 is committed by a commercial organisation, and such offence is proved in the court to have been committed with the consent or connivance of any director, manager, secretary or other officer shall be of the commercial organisation, such director, manager, secretary or other officer shall be guilty of the offence and shall be liable to be proceeded against and shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Explanation.--For the purposes of this section, "director", in relation to a firm means a partner in the firm."

(Emphasis supplied)

Section 7 deals with offence relating to public servant being bribed.

The explanations indicate that whoever obtains, accepts or

attempts to obtain would cover cases where a person being a public

servant obtains to himself or any other person by abusing his

official position. This would not be applicable to the petitioners in

this case. It is at best be laid against accused No.1 who is a public

servant. Section 7A again deals with a public servant. Therefore,

Sections 7(b) and 7A of the Act would not be applicable to the facts

of the case. Sections 8, 9 and 10 are what would become

applicable to the facts of the case. Section 8 deals with offence

relating to bribing of a public servant. It meets out punishment to a

person who gives or promises to give an undue advantage to any

person by inducing a public servant to perform an improper duty or

to reward a public servant for improper performance of public duty.

15. In terms of the facts narrated hereinabove, the issue in

the lis forms a story in a story. The demand or acceptance of the

amount of bribe concerning the first informant is clearly brought out

as it concerns the issue of tender between the two companies.

That forms the issue in Crime No.13 of 2023 and that is not the

issue in the lis. The issue in the present lis is concerning Crime

No.15 of 2023. As observed hereinabove, this is a picture in a

picture. Accused Nos. 2 and 3 in the case at hand were caught at

the time when the search was conducted in connection with Crime

No.13 of 2023. They were admittedly caught holding two bags of

cash of `45/- lakhs each and were sitting in the personal office of

accused No.1, son of the Chairman of Karnataka Soaps and

Detergents Limited and they are the office bearers of Karnataka

Aromas Company, a commercial organization. The question is why

were they sitting in the personal office of accused No.1, a public

servant and why were they sitting with bags containing cash of

`45/- lakhs each waiting to see accused No.1 in his personal office,

would become a matter of investigation. At the time they were

questioned and bags seized, their answers were that they were

office bearers of accused No.5/company and wanting to meet

accused No.1. They were not aware of any other fact. It is,

therefore, allegations under Sections 8, 9 and 10 are laid against all

the accused in the case at hand. Sections 8, 9 and 10 of the Act

(supra) would become applicable to accused Nos. 1 to 5 in

connection with accused No.1, a public servant. Therefore, it would

prima facie fall within Section 8(1)(ii) to reward a public servant for

improper public duty. Section 9 deals with offence relating to

bribing a public servant by a commercial organization. The accused

in these petitions are office bearers of Karnataka Aromas Company,

a commercial organization and they are alleged of wanting to bribe

accused No.1, son of the Chairman Mr. Maadal Virupaksha on

behalf of whom the accused has allegedly demanded the aforesaid

amount. Therefore, a commercial organization was wanting to bribe

a public servant.

16. The offence against the office bearers of M/s Karnataka

Aromas Company is, therefore, met. Section 10 deals with person

in-charge of commercial organization to be guilty of offence. The

section mandates that where an offence under Section 9 is

committed by a commercial organization, the person/s who are in-

charge would also be guilty of the offence. Accused No.5 who are

depicted as office bearers are the persons in-charge of the

Company. Therefore, ingredients of Sections 8, 9 and 10 are prima

facie met in the case at hand.

17. In the teeth of the aforesaid facts what become necessary

is conduct of investigation in the least as the alleged episode clearly

fits into the offences punishable under Sections 8, 9 and 10 in

connection with a public servant and, therefore, the offences under

Section 7. It is for the petitioners to come out clean in the

investigation as money is found in the personal office of accused

No.1. There is no satisfactory explanation. It is the contention of

the learned senior counsel for the petitioners that accused No.4 has

claimed ownership of the cash. If accused No.4 has admitted and

claimed ownership of the cash and has given a statement to the

Police to that effect, the said statement is also required to be tested

before a Court of law in evidence. Therefore, the ownership claimed

by accused No.4 would not mean that registration of crime against

other accused should be quashed. They are all a matter of

evidence.

18. To test the submission of the learned senior counsel a

pointed query was made with regard to the salary of accused 2, 3

and 4. The learned senior counsel, on instructions, would submit

that accused 2 and 3 who were holding the cash of `90/- lakhs and

sitting in the lobby of the personal office of accused No.1 are in the

cadre of Assistant Managers and their salary is `50,000/- per

month. Therefore, it cannot be said that the amount belongs to

them. They are only employees of the Company. Accused No.4 who

claims ownership over the amount is in a little higher cadre and his

salary is said to be `1,50,000/- per month. Even then the

justification of ownership of `90/- lakhs will have to be before a

Court of law, as the matter is still at the stage of investigation. The

submission of the learned senior counsel is that in terms of the

proviso, if the accused are not in a position to explain the

compelling circumstances within one week from the date of search,

it would then become a crime under Section 8 of the Act cannot be

considered at this juncture as they are all a matter of investigation.

Any finding rendered on the said submission would prejudice the

case of the petitioners in the investigation or further proceedings.

19. The learned Special Public Prosecutor for the

respondents/Lokayukta Sri. B.B.Patil has placed on record the

documents of investigation. There are plethora of whatsapp chats

between accused No.1 and the other accused, the narration of

which will seriously prejudice the case of the accused No.1 and

could be that of the petitioners. Therefore, I refrain from referring

to them, at this stage, as they are a matter of investigation or trial,

as the case would be.

20. Prima facie, if the story narrated by the learned senior

counsel is accepted, it would be accepting a screenplay of a

potboiler without letting investigation to be conducted into such

ingredients, as the story, within a story twined is interesting to

listen, it is a katha sangama but, if on the story the petitioners

are left of the hook, the very object behind the amendment and

substituting Sections 8, 9 and 10 would be rendered redundant. It

is high time the menace of corruption is plugged and nipped

in the bud by making the bribe giver susceptible for such

prosecution, like the bribe taker.

21. It is in public domain, to notice that India is a signatory

to the United Nations Convention against corruption (UNCAC).

Articles 5 to 14 of the said Convention deal with prosecution for

corruption. It would mandate that corrupt can be prosecuted after

the fact but first and foremost it requires prevention. Therefore, the

entire chapter was dedicated to prevention with measures directed

at both public and private sector. It is based upon these articles

arrived at the convention, certain measures were sought to be

taken to arrest corruption. One such step by the Parliament was

amendment that comes about on 26-07-2018 to the Prevention of

Corruption Act, making the giver and the taker stand on the

same pedestal of prosecution.

22. It is beyond any cavil of doubt that corruption has

percolated to every nook and corner of public life in the country and

has become an issue in all walks of life posing a grave danger to

the concept of constitutional governance. Corruption emerges in

various hues and forms and it is therefore, unfathomable.

Reference being made to a paragraph of the judgment of the Apex

Court in the case of STATE OF GUJARAT v. MANSUKHBHAI

KANJIBHAI SHAH 1 in the circumstances would become apposite.

The Apex Court observes as follows:

"60. Zero tolerance towards corruption should be the top-notch priority for ensuring system based and policy driven, transparent and responsive governance. Corruption cannot be annihilated but strategically be dwindled by reducing monopoly and enabling transparency in decision-making. However, fortification of social and moral fabric must be an integral component of long-term policy for nation building to accomplish corruption free society."

(Emphasis supplied)

The observation of the Apex Court is germane to this case as well,

as the entire facts narrated hereinabove are shrouded with

corruption, on all the fours of the facts. In the teeth of the

(2020)20 SCC 360

aforesaid facts, reference is being made to the writer and

philosopher of the USA, Ayn Rand, who on corruption would say;